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order obtained by the defendant as a nullity, on the ground that the papers on which it was procured fail to conform to the requisites demanded by the rule, in respect to delay, although the effect of the order be, to throw the cause over both the circuit in the county designated in the complaint as the county of trial, and that in the county to which it is proposed to be changed. 22 Wend., 633. The motion.—The motion to change the venue is founded on an affidavit, to the form of which particular attention should be paid, and which must, in general, be made by the defendant himself, though, under special circumstances set forth in the affidavit, it has been held sufficient when made by his attorney in the action. 4 Hill, 64, note. If the motion is grounded on the convenience of witnesses, the affidavit should state the name of the witnesses residing in the county to which the defendant seeks to change the venue, 6 Cowen, 389, and their residences, 1 Hill, 671 ; 3 Id. 445; stating the town, village, or particular place of residence, in addition to the county. 1 How. Spe. T. R., 195, and that each and every of them is material to the defense, as the defendant is advised by counsel and verily believes. 3 Wend., 425; 9 Id. 431; 1 Hill, 668, and without the benefit of the testimony of each and every of them, he cannot safely proceed to trial, as he is advised by counsel, and verily believes, 3 Wend., 425; 9 Id, 431; that he has fully and fairly stated the case to his counsel, iving the name and residence of such counsel, Rule 36, 4 Pr. R., 86; 3 ib., 413; § ib., 296; 1 Code Rep., 117, and has fully and fairly disclosed to him the facts which he expects to prove by each and every of his witnesses, 9 Wend., 10; 1 How. Spe. T. R., 55, 70, 165; 1 Hill, 668; and that he has a good and substantial defense on the merits, 1 How. Spe. T. R., 162, as he is advised by his said counsel, and verily believes, 4 Hill, 64, 66; 1 How. Spe. T. R. 62. The affidavit should also state the name of the county designated in the complaint as the county of trial, 1 How. Spe. T. R., 184; 1 Hill, 668; and if not made by all the defendants, it should show the reason why it is not so made. 1 How. Spe. T. R., 156. In addition to what has usually been stated in affidavits concerning venue, either party may state the nature of the controversy, and show how his witnesses are material; and may also show where the cause of action, or the defense, or both of them, arose; and those facts will be taken into consideration by the court, in fixing the place for trial. Rule 46. The county in which the witnesses reside, rather than the distance they will have to travel, must govern on motions to change the place of trial. People v. Wright, 3 Code Rep., 75; 5 Pr. R. 23. In Hull v. Hull, 1 Hill, 671, a motion was made to change the venue from Alleghany to Cattaraugus, on an affidavit that the defendant had fifteen witnesses in the latter county. It was shown in opposition to the motion, that the defendant's witnesses resided nearer to the court-house in Alleghany, than to the court-house in Cattaraugus; viz., 25 miles from the former and 27 miles from the latter. But the court granted the motion, and Bronson, J., said, “On a question of venue, we look to the county in which the witnesses reside, rather than the distance they will have to travel As a general rule, the convenience of witnesses will be best consulted by having the trial in the county where they reside. That course will be less likely to disturb their social and business relations than calling them to a foreign county.” This case was cited and approved by Parker, J., in People v. Wright, supra. See, Beardsley v. Dickerson, 4 PrP., 81. The place of trial of a transitory action, when the plaintiff and defendant reside in different counties, should be the county where the principal transactions between the parties occurred, and where it appears the largest number of the witnesses who know any thing of the facts reside. A majority of witnesses should not necessarily control. Jordan v. Garrison, 6 Pr. R., 6. Therefore, where in a transitory action the plaintiff resided in Ulster and the defendant in Orleans county, and the place of trial named was Ulster county, and the defendant moved to have the place of trial changed to Orleans county, and swore to 16 witnesses residing in Orleans county; and the plaintiff opposed the motion on an affidavit drawn in the usual form, swore to 18 witnesses residing in Ulster, and then stated that he expected to prove by Schoonmaker, one of the witnesses, the sale of the demand to the plaintiff, and the sale of the property to the defendant, and further, all the facts in issue, that he expected to prove by six other witnesses the value of the wood-work of the wagons; by nine others, acknowledgements of the defendant, made at various times, that the work had been sold to him, and his promises to pay therefor; and by one other witness the handwriting of the defendant to certain letters written by the defendant to Schoonmaker on the subject of the property. Harris, Justice, on granting the motion, said, “It is obvious from the mere statement of the facts set forth in the affidavits read upon this motion, that the cause should be tried in Orleans. The transactions between the parties all occurred there, and there all the witnesses who appear to have any knowledge of those transactions, with the exception of Schoonmaker himself, reside. Although the plaintiff has sworn to a greater number of witnesses in Ulster than the defendant has named in Orleans, yet, I am not satisfied that the plaintiff will, in fact, have occasion to call, upon the trial, any of those named by him, except Schoonmaker. He is cognizant of all the facts. The plaintiff, accordingly, swears that he expects to prove by him all the facts in issue in the suit. On the contrary, altlough the amount in controversy is not large, I cannot see why the defendant will not be obliged to call the greater part, if not all, the witnesses named in his affidavit.” Opposing the motion.—The plaintiff may resist the motion, by an affidavit showing material witnesses, 1 IIow. Spe. T. R., 56, residing in the county named in the complaint, as the county of trial. 2 Caines' R., 374. 3 Id., 95. 2 Johns. R., 481. 7 Cowen, 102. 19 Wend., 10. But he must swear unqualifiedly, that he has witnesses in or near the county named in the complaint as the county of trial, of an equal number with those of the defendant, or a greater number, or the place of trial will be changed. 12 Wend., 294. And the residence of a greater number of witnesses in an adjoining State adjacent to the place of trial named in the complaint is not sufficient to retain the place of trial. 2 Wend., 282. 6 Id., 541. 4 Hill, 68, note. And it is no answer to a motion to change the place of trial, that by granting it, the plaintiff will lose a trial or a term, where the defendant is not chargeable with laches; and even where he is so chargeable, his neglect must be such as to produce the delay, or the motion will be granted. Lynch v. Mosher, 4 Pr. R., 86.22 Wend., 615. Formerly it was no answer to the motion, that the cause was at issue on demurrer only, 2 Hill, 382; but now see Gould v. Chapin, 2 Code Rep., 107. And where, on a motion to change the venue from the county of O. to the county of C., the defendant's affidavit stated that the action was brought to recover for services as attorney and counsel, rendered by the plaintiff while residing in the county of C., that the defendant had twenty witnesses in the latter county, and that, if the plaintiff should claim to have more than one witness (naming him) in the county of O., the others could only be material for the purpose of proving the value of the services for which the action was brought, which could as well be proved by witnesses residing in the county of C., and the plaintiff in opposition to the motion, swore to twentyfive witnesses in the county of O., ten of whom were attorneys and counselors at law, but omitted to answer the matters specially set forth in the defendant's affidavit, the motion was granted. 5 Hill, 509. 1 How. Spe. T. R., 73. The court in deciding the motion will be governed by the convenience of witnesses. 4 Wend., 208, 9Id. 451. 1 Hill, 668, 671. And where the plaintiff outnumbers the defendant in witnesses (12 Wend, 294; 1 Hill, 668, 671), or swears to an equal number, (5 Cowen, 414; 12 Wend, 291), the motion will be denied. But not under all circumstances. 5 Hill, 509. 1 How, Spe. T, R., 73. So where it is clear that the defendant's object is merely delay (12 Wend., 293; 22 Id. 615; 10 Id. 571), or where his affidavit is defective (19 Wend., 617; 9 Id. 431; 22 Id. 636; 2 Hill, 359), the motion will be denied. And where, in a common action of assumpsit, the defendant swore to seventyeight witnesses, as material to his defense, it was considered a fraud upon the court, the nature of the action not being fully explained, to satisfy the court that the number of witnesses was necessary. 1 How. Spe. T. R., 122. 4 Hill, 536. Where a party meets an application made by his adversary to change the venue, by a stipulation not to give any evidence except as to facts occurring in the county where the venue is laid, the venue will not be changed. Smith v. Averill, 1. Barb. S. C. R., 28. Therefore, where on a motion to change the venue from New York to Clinton county, it appeared that the defendants were sued for a bill of goods, as partners, and they swore to a number of witnesses residing in Clinton county, their residence, to prove that they were not partners, on the other side, it was shown that the claim did not rest on evidence of the fact of partnership, but on evidence that at the time of purchasing the goods both the defendants were present and represented themselves as being partners, Edmonds, J., on denying the motion, said, “If the facts as to the existence of the partnership were to be gone into, that would be a good reason, perhaps, for changing the venue. But as the plaintiffs' attorney swears that their case rests upon another ground, viz.: representations made in New York by the defendants respecting the partnership; and as he now offers to stipulate not to give any other evidence of the partnership than those representations, the venue may be retained in New York upon the giving of such a stipulation.” Where aster service of papers for a motion to change the venue, together with an order to stay proceedings, the plaintiff amended his declaration by changing the venue to another county, and it appeared on the motion, that the plaintiff had a sufficient number of witnesses to retain the venue in the latter county; and that the defendant had had time to serve new papers since the amendment, but omitted to do so, the motion was denied. 1 Hill, 374. And where, on receiving notice of the motion, the plaintiff agreed to change the venue, according to the wish of the defendant, provided he would accept short notice of trial, the motion was denied, as defendant could not show it to be impossible for him to prepare for trial on short notice. 9 Wend 498. So where the defendant after service of his papers, and before the motion was actually made, suffered a default for not pleading, this was held to defeat the application, even though he obtained and served an order staying proceedings. 4 Hill, 69, note. Where the ground of the motion is that a fair and impartial trial cannot be had in the county named in the complaint as the place of trial, this fact must be made to appear to the court very conclusively, in order to induce it to change the venue. Accordingly the motion was refused where it was founded merely on the fact that the sheriff of the county was a party to the suit (2 Caines' R., 46), or that the corporation of the city of New-York was a party, where the venue was laid in that city (2 Johns. Cas., 335), or, in an action sor slander or libel, that a violent party spirit prevailed in the county. 1 Caiues R., 487. And the existence of a strong popular excitement in a county on the subject matter of a libel suit, was held to be no cause for refusing to change the place of trial on an ordinary affidavit. 2 Wend, 250; 3 Caines' R., 127. But the place of trial was changed on the ground of excitement, after two ineffectual attempts to obtain a verdict in the county where it was laid. 12 Wend., 203. And it was held sufficient cause to change the place of trial, that the circuit judge of the district where the venue was laid, was previous to his appointment counsel in the cause. 2 Wend., 290. See, however, note to section 23 of this code. A supposed excitement or prejudice, which makes it doubtful whether a fair and impartial trial can be had in the county to which it is moved to change the place of trial, is no cause for refusing the motion. The inability to obtain a fair and impartial trial must be clearly established. An actual experiment, by way of trying the cause, or attempting to impannel a jury, should first be made. People v. Wright, 3 Code Rep., 75, and per Parker, J., 5 ProR., 23. “It appears by the affidavits that the matters in controversy have been the subject of general conversation and comment throughout the county; that feelings and prejudices exist; and that the deponents believe the electors of the county have generally and almost universally formed and expressed an opinion on the merits, which they would not be likely to change. That such matters have been the subject of newspaper discussion in said county, and that there has been, and is much excitement on the subject, and that it is very doubtful whether a fair and impartial trial can be had in said county of Rensselaer. Do these allegations furnish a sufficient reason against the trial being held in the county of Rensselaert Bernam v. Ely, 2 Wend., 250, was an action for the publication of a handbill, alleged to be libelous, issued immediately before an election, by the defendants, styling themselves to be the Anti-masonic Central Committee. The defendants moved to change the venue from Oneida to Monroe. The motion was opposed on the affidavit of several individuals in which they stated that from their knowledge of the excitement then existing on the subject of masonry, they believed the plaintiff could not have a fair and impartial trial before a jury of Monroe county. But the court granted the motion, and said they would not, on any speculative opinion formed by individuals, however, respectable, interfere with the ordinary course and practice of the court in the administration of justice. Marcy, J., said, “pervading as may be the excitement referred to, the court repose confidence in the intelligence and integrity of the freeholders of Monroe. Should it unfortunately happen that the apprehension of the plaintiff is realized, he will not be remediless, as it will then be in sufficient time to interpose the strong arm of the law, to cause the course of justice to flow unpolluted by passion or prejudice.” The same rule was followed in Messenger v. Holmes, 12 Wend., 203, where a motion was made to change the venue on the ground of excitement, after two trials of the cause, in neither of which the jury were able to agree. The court held, that the case came within the principle stated in Bowman v. Ely, and granted the motion. Savage, Ch. J., said, “when it is found by actual experiment, that a fair trial or as in this case no trial, can be had in the county where the venue is laid, the motion on the ground relied on in this case will be granted; but otherwise not.” “But it is claimed on the part of the plaintiff, that the rule thus laid down in the cases above referred to has been changed by the case of the People v. Webb, 1 Hill, 79, where, without an attempt to try the cause, the venue was changed from Otsego to Montgomery, on motion of the district attorney, on the ground of excitement and improper influences in the former county. The rule was certainly so far relaxed in the last cited case, as to hold that an actual experiment, by way of trying the cause, or attempting to impannel a jury, was not the only evidence the court would receive as proof that a fair and impartial trial could not be had in the county where the venue was laid; the motion was granted principally upon the ground, that it appeared that the defendant had improperly attempted to influence the jurors drawn at a previous court of oyer and terminer in Otsego county, by sending to them newspapers containing articles tending to prejudice their minds against the prosecutor in respect to the trial; and that he had also influenced and misled the public mind by circulating libelous articles throughout the country among those who were not subscribers for his paper.” “In the later case of People v Bodine, 7 Hill, 181, an application to change the venue from Richmond county to New York was refused, notwithstanding there had been one trial in Richmond in which the jury did not agree. Ch. J. Nelson there stated that he had examined the subject with a view to settle some rule, by which cases of that kind might thereafter be governed. He held that it was not enough for jurors to state their belief that a fair and impartial trial could not be had in the county, but that the facts and circumstances forming the grounds of such belief must be stated, so that the court may judge for itself whether or not the allegation is well founded, and that the inability to obtain a fair and unprejudiced jury must be clearly established. To this extent the rule is consistent with all the cases above examined, and also with other authorities, which I have not deemed it necessary to refer to. 1 Black. Rep., 378. 1 Chit. Crim. Law, 200. Roscoe Crim. Ev., 236. The People v. Vermilye, 7 Cowen, 137. “In People v. Bodine, it was said that the rulet here recognized was founded on good sense, and that its practical operation would prove an essential check upon the facility with which motions inay be got up from a too ready apprehension of undue prejudice.” It is said there is no statute under which the courts can order an issue of law to be tried out of the county originally specified in the complaint, or that substituted under section 126. And the cause must, for this purpose, be triable in the district where the venue is, regardless of any order that changes the place for trying an issue of fact. Gould v. Chapin, 4 Pr. R., 185; 2 Code Rep., 107. Ward v. Davis, 6 Pr. R., 274. And where there are issues of law and fact, the court cannot change the place of trial. Clark v. Van Deusen, 3 Code Rep., 219. But on such a motion the court will look into the materiality of the issues of law, and if they are immaterial, will grant an order to change the place of trial. Ib. It is said that the amendment of 1851 to section 252 removed all doubts on this subject, and that an issue of law may be brought to trial at any general term in the district. 6 Pr. R., 276, n. With respect to the last clause in this section (126), under the code prior to the recent revision, it was held that an order to change the place of trial did not carry with it a change of the venue in the cause. Barnard v. Wheeler, 3. Pr. R., 71. Beardsley v. Dickerson, 4 Prof... 81. Lynch v. Mosher, ib.,86. Gould v. Chapin, ib., 185. 2 Code Rep, 107. And it was said that the effect of the order was to remove the place of trial of the issue of fact, and, as a consequence, the proceedings in the cause incidental to and necessarily connected with the trial of the issue of fact. But that other proceedings in the action were not affected by the order. Ih. And considerable discussion occurred as to the proper county in which to move, in any proceeding in the cause aster an order had been made to change the place of trial: Thus, where the place of trial named in the complaint (the venue) was Monroe county, and an order was afterwards made changing the place of trial to Albany county, it was held that the venue was not changed, and that a motion for an extra allowance was properly made in Monroe county. Gould v. Chapin, 2 Code Rep., 107; 4 Pr. R., 185. And this decision as to this point was sanctioned by the opinion expressed in Barnard v. Wheeler, Lynch v. Mosher, and Beardsley v. Dickerson, supra. And this section (126) appears confirmatory of the previous practice, except where otherwise provided by consent of the parties or order of the court. Whether under the present provision a change of the place of trial is equivalent to a change of the venue, or transfers the cause for all purposes without or against the consent of all the parties, remains to be determined by judicial decision. (See Mason v. Brown, 6 Pr. R.,483). Section 49 of the judiciary act (Laws of 1847, p.333), provided only for a change of the place of trial of an issue of fact; and one argument used by Mr. Justice Sill, in Gould v. Chapin, 4 Pr. R., 185, to show that the change of the place of trial was not a change of the venue, or a transfer of the cause for all purposes, was, that no power existed in the courts to change the place of trial of an issue of law. By rule 3 of the supreme court rules it is provided, that in case the place of trial is changed for the reason that the proper county is not specified, as required by section 125 of the code, papers on file at the time of the order making such change shall be transferred to the county specified in such order, and all other papers in the cause shall be filed in the county so specified.
Manner of commencing Civil Actions.
Section 127. Actions, how commenced.
§ 127. [106.] Actions when commenced.—Civil actions in the courts of record of this State, shall be commenced by the service of a summons.
This section is identical with section 106 in the code of 1848, and where while that code was in effect, a warrant under the Stillwell act was served simultaneously with, but issued before the service of the summons in the action, the warrant was held to be a nullity, being issued before any action was commenced. Lee v. Averill, 1 Code Rep. 73, 1 Sand. S. C. R., 731. But now, for the purpose of issuing such a warrant, the action is sufficiently commenced by lodging the summons with the sheriff, with intent that it should be served, under section 99. Gregory v. Weiner, 1 Code Rep. N. S., 210. Section 99 in the code as it now stands seems to have rendered this section only a repetition. See sections 99 and 74.